NZ Wills & Estates: Your Ultimate Guide to Protecting Your Legacy

• Dying without a will (intestacy) forces your estate through a costly and complex legal process governed by rigid, often unsuitable government rules.
• A valid will is your only way to control who inherits your assets, appoint guardians for your children, and protect your loved ones from disputes.
• For a will to be valid in New Zealand, it must be in writing, signed by the will-maker, and witnessed by two people who are not beneficiaries.
• A will is a private document until the will-maker's death. Afterwards, the executor controls access, and there is no formal "reading of the will."  Once a probate of a will is obtained, anyone can a request a copy of the will from the registry of the High Court.

Many people think of a will as a document that is only about death. We see it differently. A will is one of the most important documents you will ever create. It's a final act of care for the people you leave behind, providing clarity and security at a difficult time.

It's not something to put off. In our experience, the consequences of not having a professionally drafted will are far more severe than most people realise. It creates a legacy of stress, cost, and unintended outcomes for your family.

When a person dies without a valid will, they are said to have died "intestate." This doesn't just mean your assets are frozen; it means you have surrendered all control over your estate to a rigid legal formula.

Instead of your chosen executor applying for a simple Grant of Probate, a person pursuant who is first in priority under the Administration Act 1969 must apply for "Letters of Administration." We've guided many families through this, and we can tell you it is almost always more complex, expensive, and time-consuming  than the probate process. This happens at the worst possible time, adding a heavy administrative and financial burden to a grieving family.

You lose your voice. The law decides who gets what.

How Your Assets Are Divided by Default

The Administration Act 1969 sets out a strict hierarchy for who inherits your property if you die intestate. The rules are inflexible and often lead to results you would never have wanted.

For example, if you die leaving a spouse or partner and children, your partner does not automatically inherit everything. They receive all personal chattels, a statutory legacy of $155,000, and just one-third of the remaining estate. Your children receive the other two-thirds. For many families, this outcome can cause immediate financial hardship for the surviving partner.

The situation changes with different family structures. If you have a spouse or partner and living parents but no children, your partner receives the chattels, the $155,000 legacy, and two-thirds of the remainder. Your parents would then inherit the final one-third, which can be a complete shock to everyone involved.

And if you have no eligible relatives at all? Your entire estate passes to the Crown. Your friends, carers, or favourite charities get nothing.

A will is your instruction manual for the future. It replaces the government's rigid formula with your own clear directions, ensuring your legacy is handled exactly as you intend.

Appoint Guardians for Your Children

This is one of the most critical functions of a will for parents with young children. A will is the only legal document where you can nominate who you want to care for your children if you die. Without it, the decision falls to the Family Court, leaving your children's future uncertain during an already traumatic time.

Protect Your Loved Ones from Disputes

A vague or non-existent will is an invitation for conflict. We have seen families torn apart by arguments over who was promised what. A professionally drafted will provides absolute clarity, defines who your beneficiaries are, and appoints an executor you trust to carry out your wishes. This precision is the best defence against potential wills and estate disputes , saving your family from costly and emotionally draining legal battles.

A Note on Trusts and Wills

A common mistake we observe is people assuming that having a trust means they do not need a will. This is incorrect. While a trust is an excellent tool for managing specific assets, you will almost certainly have personal property that sits outside the trust. Your will is needed to manage these remaining assets. A comprehensive estate plan uses both documents working in concert, and our expertise in trusts and personal asset planning ensures they are structured correctly.

Creating a will isn't just about writing down your wishes; it must comply with specific legal formalities to be legally binding. The Wills Act 2007 sets out these rules.

The Formal Requirements

For a standard will to be valid in New Zealand, it must meet three core conditions. It must be:

• In writing.
• Signed by you (the will-maker or testator).
• Witnessed by at least two people who are both present with you at the time you sign.

It's absolutely critical that your witnesses are not beneficiaries of the will. If a beneficiary acts as a witness, any gift to them in the will is voided. This is a simple but costly mistake we've seen people make when they try to create a will without professional guidance.

Testamentary Capacity: A Crucial Element

For a will to be valid, the will-maker must have "testamentary capacity" at the time of signing. This means you must understand you are making a will, be aware of the assets you own, and appreciate who has a moral claim on your estate. As specialists in elder law and mental capacity , we understand the importance of carefully documenting capacity, especially when health is a concern, to protect the will from future challenges.

What if a Will Isn't Perfect? The High Court's Power

What happens if a document that looks like a will doesn't meet all the formal rules? The New Zealand High Court has the power under the Wills Act 2007 to declare it a valid will. This can happen if the court is satisfied that the document truly expresses the deceased person's wishes.

However, this is a legal remedy, not a plan. Relying on it means your estate will certainly face a court application, creating the very cost, delay, and stress you sought to avoid. Getting it right the first time is always the best approach.

The question of who has the right to see a will is a frequent source of confusion. The rules are strict and change significantly upon the will-maker's death.

While You Are Alive

It's simple. Your will is a completely private and confidential document. No one has the right to see it or demand a copy without your express permission. Not your spouse, not your children, not your bank. You, and only you, are in control.

After You Have Passed Away

Once you die, the will ceases to be private and becomes a legal document for administering your estate. The original is held by your executor, who now controls access to it.

The cinematic "reading of the will" where the family gathers in a lawyer's office is a myth in New Zealand. It doesn't happen. Instead, the executor is generally required to provide a copy of the will to the beneficiaries named in it. If an executor is uncooperative, a beneficiary can often obtain a copy once the will has been filed with the High Court for probate.

Your will isn't a "set and forget" document. It should be reviewed every few years, or whenever you experience a major life event like a marriage, separation, the birth of a child, or a significant change in your financial circumstances.

An outdated will can be just as problematic as having no will at all.

Treating your will as a direct path to your family's future security is the key to unlocking its value. It's an investment in peace of mind. Don't leave it to chance. Contact our team to ensure your wishes are protected with a professionally prepared, legally sound will.